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HIGH COURT OF RAJASTHAN (JODHPUR BENCH)
MS. JUSTICE REKHA BORANA, J
Lrs of Late Shivdutt Purohit – Appellant
Versus
Lrs of Ms. Shanta Oza – Respondent
| Table of Content |
|---|
| 1. application filed by deceased (Para 5 , 8 , 10) |
| 2. counsel argues technicalities (Para 6 , 7) |
| 3. court discusses technical lacunae (Para 9) |
| 4. court's reasoning on technical defects (Para 11 , 12 , 13 , 15) |
| 5. appeal disposed with liberty (Para 14) |
Order :
1. The present miscellaneous appeal has been filed against the order dated 12.12.2024 passed by the Additional District Judge No.4, Jodhpur Metropolitan in Civil Misc. Application No.80/2024 whereby the application under Order 41 Rule 19 and Order 9 Rule 9 read with Section 151 of the Code of Civil Procedure as filed by the applicant stood rejected.
2. The facts are that ‘no instructions’ were pleaded on 17.04.2023 by the counsel representing the appellants in the appeal in question. Prior to the said date, the matter was posted for appropriate steps to be taken qua deceased respondent Nos.2/3/1 and 3/5. However, no steps qua the said deceased respondents were taken and ‘no instructions’ were pleaded by the counsel. Therefore on 15.05.2023, the appeal was dismissed in non-prosecution and non-compliance.
3. Aggrieved of the order dated 15.05.2023, an application on 03.07.2023 was filed in terms of the aforementioned pro
Technical defects in legal applications should not prevent justice; courts should allow opportunities to rectify such issues.
Timely application for substitution of deceased parties is necessary to prevent abatement, and negligence in pursuing an appeal justifies the court's decision to uphold abatement.
The court emphasized the need for the District Judge to consider the pending applications and the main controversy involved in reaching a decision.
Procedure is handmaid of justice; delay in substituting legal representatives of deceased defendant condoned where death notice dubious, no timely objection by defendants, preventing harsh abatement.
It well settled that any defect in signing memorandum of appeal or any defect in the authority of the person signing the memorandum of appeal, or omission to file vakalatnama executed by appellant, a....
The court invoked the inherent powers under Section 151 CPC to allow the restoration application and held that the application for restoration was maintainable under Order IX Rule 4 CPC.
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